Harnessing the Power of Science in Environmental Law.
Abstract
Environmental law arose from new scientific understandings of ecology in the mid-twentieth century. Although science has historically played a role in environmental law, its role has been more limited than might seem appropriate for a field so reliant on science to inform sound decision-making. Unfortunately, a variety of factors have hampered environmental law’s ability to adapt to and incorporate new scientific developments that could significantly improve environmental decision-making.
This article will begin by discussing how science is used in environmental law and the barriers that frequently prevent new scientific developments from being used in environmental law. While acknowledging that barriers and opportunities exist in a variety of legal forums, including the judicial system, This article will concentrate on the barriers and opportunities in the administrative rulemaking and policy development setting. This article will trace the journey of three distinct scientific developments, from scientific academia to environmental administrative law, to demonstrate how legal scholars, lawmakers, environmental agencies, and practicing lawyers have attempted to incorporate new scientific developments into environmental law, particularly in the administrative context. These three scientific developments were chosen because, while all three are relatively new, each has had a unique journey and varying degrees of success in becoming law.
Regulatory agencies have embraced risk assessment, and it has become an essential component of environmental law. Management that adapts, On the other hand, while supported by scientists and legal academics, it has yet to find a home in the law. Finally, despite the fact that it has been around for over thirty years, is widely accepted in the scientific community, and has the potential to transform environmental decision-making, emergy synthesis has been largely ignored by the legal community. This article will investigate why the law has treated these various scientific developments in such disparate ways. The article will conclude by attempting to draw conclusions about what types of scientific developments are most likely to be incorporated into the law and recommending ways to increase the likelihood that new beneficial developments will be adopted to inform the law.